State v. Chuparkoff

[Cite as State v. Chuparkoff, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 107756
                 v.                               :

MARK ANDREW CHUPARKOFF,                           :

                 Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: July 11, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-614697-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Matthew E. Meyer and Jennifer M. Meyer,
                 Assistant Prosecuting Attorneys, for appellee.

                 Mark Chuparkoff, pro se.


ANITA LASTER MAYS, J.:

                   Defendant-appellant Mark Andrew Chuparkoff (“Chuparkoff”) was

formerly a licensed attorney in the state of Ohio who was based in Franklin County,
Ohio.1 Chuparkoff was indicted on February 28, 2017 for multiple felonies including

grand theft, tampering with records, and forgery. Money laundering prohibitions

were attached to the charges.

               The activities took place from December 23, 2015, through May 1,

2016, and included the theft of $75,000 of a medical malpractice settlement that

Chuparkoff wrongfully retained.           Chuparkoff represented the Lee family,

immigrants to the United States who did not speak English, and resided in Butler

County, Ohio where the malpractice occurred. The case was filed in Butler County

against the attending physician and the urgent care facility involved with the

misdiagnosis of Mr. Lee’s hip fracture.

               The case against the physician was settled with the Lees’ authority.

The case against the urgent care facility proceeded to trial where the Lees prevailed.

According to the state, due to the time and expense involved with the urgent care

facility’s appeal, the Lees requested to drop the case. The state argues that

Chuparkoff proceeded without the Lees’ authority or knowledge and settled the case

for $75,000 that Chuparkoff retained for his own use. Chuparkoff counters that the

Lee family abandoned their part of the suit but allowed him to continue the case to

recover his one-third interest of the $289,000 jury verdict.



      1  Chuparkoff was not duly licensed throughout the period in question because his
law license was suspended on December 23, 2015, relating to a child-support issue. In re
Chuparkoff, 

, 

, 

. The license was
reinstated on January 21, 2016, and an interim remedial suspension imposed for
engaging in conduct posing a threat of harm to the public. Disciplinary Counsel v.
Chuparkoff, 

, 

, 

.
              Chuparkoff picked up the settlement check from a law firm in

Independence, Ohio. The state charged that he forged the check endorsements and

filed a fraudulent satisfaction of judgment in Butler County constituting tampering

with records. According to the state, Chuparkoff spent the entire sum and most was

expended for gambling at the Horseshoe Casino in Cleveland.

              Counsel was appointed for Chuparkoff in June 2017. Trial was

scheduled for June 28, 2017. Chuparkoff requested time to retain new counsel but

asserts that he was only given five working days to do so due to the Fourth of July

holiday weekend. The trial court granted a continuance and set a pretrial date of

July 10, 2017. New counsel entered an appearance on that date.

              On September 11, 2017, upon the advice of new counsel, Chuparkoff

entered a guilty plea to grand theft, attempted tampering with records, and forgery.

The parties agreed that the three charges constituted a continuing course of conduct

under R.C. 2953.31. The state advised that it would oppose any application for

expungement until Chuparkoff paid restitution in the amount of $50,000.

Chuparkoff was advised of the possibility of three years postrelease control at the

parole board’s discretion.

              On September 29, 2017, Chuparkoff was sentenced to five years of

community control on each count with six months of local incarceration with

advisement of postrelease control and restitution.       On December 28, 2017,

Chuparkoff filed a motion for early release under R.C. 2929.20 that was denied by

the trial court on January 3, 2018.
                   On August 30, 2018, after Chuparkoff was released from

incarceration, he filed a motion to vacate the guilty plea for lack of venue and

jurisdiction, and argued that the ineffective assistance of counsel led to his plea.

Chuparkoff also argued that the Lees had given him authority to pursue the lawsuit

to recover his one-third interest and that merely picking up the settlement check in

Cuyahoga County was insufficient to vest jurisdiction.

               The state argued that Chuparkoff did not meet the requirements for a

Crim.R. 32.1 plea withdrawal because he failed to demonstrate that he was subject

to a manifest injustice, he waived the venue argument and he did not demonstrate

that counsel was ineffective. The trial court denied the motion on September 11,

2018, and held that the arguments offered in the state’s brief in opposition were

well-taken.

               Appellant appeals the trial court’s denial of his motion to withdraw

the guilty plea.

I.    Assignments of Error

               Chuparkoff offers two errors for review:

      I.      The Court of Common Pleas erred as a matter of law when it
              refused to give appellant adequate time to obtain counsel to
              represent him in the underlying criminal matter.

      II.     The Court of Common Pleas erred as a matter of law when it
              denied appellant’s motion to vacate his guilty plea based on lack
              of venue/jurisdiction and ineffective assistance of counsel.
II.   Discussion

               We address the errors out of order for ease of analysis. In addition,

there was no transcript filed as part of the record in this case. Without the filing of

a transcript, “[w]e presume that the trial court considered all the evidence and

arguments raised.” Miranda v. Saratoga Diagnostics, 

, 

, ¶ 26 (8th Dist.). In light of the presumption of regularity in the proceedings, we

accept the factual findings of the trial court as true and limit our review to the legal

conclusions of the trial court. Bailey v. Bailey, 8th Dist. Cuyahoga No. 98173, 2012-

Ohio-5073, ¶ 8, citing Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin

No. 11AP-965, 

, ¶ 8.

      A. Withdrawal of Plea

               Crim.R. 32.1 governs the withdrawal of guilty pleas:

      A motion to withdraw a plea of guilty or no contest may be made only
      before sentence is imposed; but to correct manifest injustice the court
      after sentence may set aside the judgment of conviction and permit the
      defendant to withdraw his or her plea.

 See also State v. Zaslov, 8th Dist. Cuyahoga No. 95470, 

.

               Chuparkoff must establish that a manifest injustice exists.

       [A] defendant who moves to withdraw his plea after the imposition of
      sentence “has the burden of establishing the existence of manifest
      injustice.” State v. Smith, 

, 

 (1977),
      at paragraph one of the syllabus. Either way, a motion made pursuant
      to Crim.R. 32.1 is “addressed to the sound discretion of the trial court,
      and the good faith, credibility and weight of the movant’s assertions in
      support of the motion are matters to be resolved by that court.” Smith
      at paragraph two of the syllabus.

State v. Mathis, 8th Dist. Cuyahoga No. 100342, 

.
                As such, this court has described “manifest injustice” as a

      “clear or openly unjust act,” … an extraordinary and fundamental
      flaw in the plea proceeding[,]” … a fundamental flaw in the path of
      justice so extraordinary that the defendant could not have sought
      redress from the resulting prejudice through another form of
      application reasonably available to him or her. Nicholson at ¶ 15,
      quoting State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-
      6502.

State v. Rogers, 8th Dist. Cuyahoga No. 99246, 

.

      1. Venue

               Chuparkoff argues that the trial court lacked “venue/jurisdiction” but

it is clear that his argument challenges venue. Chuparkoff cites R.C. 2901.12

governing venue in Ohio, Article I, Section 10 of the Ohio Constitution and the Ohio

Supreme Court’s holding that “[a] conviction may not be had in a criminal case

where the proof fails to show that the crime alleged in the indictment occurred in

the county where the indictment was returned.” State v. Nevius, 147 Ohio St. 273,

 (1947), paragraph three of the syllabus.

                Chuparkoff asserts that no elements of the alleged crimes took place

in Cuyahoga County. The state counters that Chuparkoff admits that he picked up

the settlement check at the urgent care center’s counsel’s office in Independence,

Ohio, located in Cuyahoga County.

               The state also offers that Chuparkoff waived the venue argument

because he failed to raise it at the trial-court level and cites this court’s opinion in

State v. Fort, 8th Dist. Cuyahoga No. 80604, 

.              In Fort, we

observed that “[v]enue is neither a jurisdictional issue nor a material element of a
criminal offense.” Id. at ¶ 45, citing State v. McCartney, 

, 

 (9th Dist.1988). “Proper venue is a fact which must be proved in

criminal prosecutions unless waived by the accused.” 

 citing 

,

citing State v. Headley, 

, 

 (1983).

              Not only does the failure to challenge venue prior to trial serve to

waive the issue, “a guilty plea precludes a defendant from challenging the factual

issue of venue on appeal.” (Citations omitted.) 

 See also State v. Jordan, 12th

Dist. Warren No. CA2014-04-051, 

, ¶ 29 (“[b]y pleading guilty, a

defendant admits to committing the offense as charged.”).

              In addition, R.C. 2901.12(H) allows for offenses committed in

multiple jurisdictions to be tried in any one of those jurisdictions where the

defendant’s activities constitute a course of criminal conduct:

      When an offender, as part of a course of criminal conduct, commits
      offenses in different jurisdictions, the offender may be tried for all of
      those offenses in any jurisdiction in which one of those offenses or any
      element of one of those offenses occurred. Without limitation on the
      evidence that may be used to establish the course of criminal conduct,
      any of the following is prima-facie evidence of a course of criminal
      conduct:

      (1) The offenses involved the same victim, or victims of the same type
      or from the same group.

      (2) The offenses were committed by the offender in the offender’s same
      employment, or capacity, or relationship to another.

      (3) The offenses were committed as part of the same transaction or
      chain of events, or in furtherance of the same purpose or objective.

      (4) The offenses were committed in furtherance of the same conspiracy.

      (5) The offenses involved the same or a similar modus operandi.
      (6) The offenses were committed along the offender’s line of travel in
      this state, regardless of the offender’s point of origin or destination.

               Chuparkoff admits that he picked up the settlement check in

Cuyahoga County. Chuparkoff’s venue argument fails and he has not demonstrated

that he has suffered a manifest injustice that would entitle him to relief. The trial

court’s order is affirmed on this issue.

      2. Ineffective Assistance of Counsel

               Here Chuparkoff argues that the denial of his motion to withdraw his

plea due to ineffective assistance of counsel is also in error and an abuse of

discretion. In order to substantiate a claim of ineffective assistance of counsel,

Chuparkoff must show that: (1) counsel’s performance was deficient; and (2) the

deficient performance prejudiced the defendant so as to deprive him of a fair trial.

State v. Trimble, 

, 

, 

, citing

Strickland v. Washington, 

, 

, 

(1984).

               Judicial scrutiny of defense counsel’s performance must be highly

deferential. 

. In Ohio, there is a presumption that a properly

licensed attorney is competent. State v. Calhoun, 

, 

 (1999). It is Chuparkoff’s burden to prove that counsel was ineffective. State v.

Hudson, 8th Dist. Cuyahoga No. 96435, 

, citing State v. Smith,

, 

 (1985).

               A guilty plea waives a claim for ineffective assistance of counsel

“‘unless the ineffective assistance caused the guilty plea to be involuntary.’” 

quoting State v. Hicks, 8th Dist. Cuyahoga No. 90804, 

. A

defendant “‘must demonstrate that there is a reasonable probability that, but for

counsel’s errors, [he] would not have pled guilty and would have insisted on going

to trial’” in order to prove ineffective assistance of counsel after entering a guilty

plea. 

 quoting State v. Szakacs, 8th Dist. Cuyahoga No. 92230, 

,

¶ 15, citing Hill v. Lockhart, 

, 

, 

(1985).

                Chuparkoff advances that trial counsel was ineffective for multiple

performance deficiencies including the failure to: (1) file motions, (2) request a

more specific bill of particulars or to conduct discovery, (3) contact witnesses, and

(4) object to venue and personal jurisdiction. Chuparkoff asserts that he was not

guilty and that the clients that he was convicted of deceiving had given permission

for him to pursue the malpractice action against the urgent care facility.

              The state responded to Chuparkoff’s motion to vacate with a copy of

a “charging matrix” introduced during pretrial discovery that listed for each charge

the date of the offense, identified the victim, jurisdiction and summarized the

evidence. The state also asserts that defense counsel made attempts to contact the

state’s witnesses and included a copy of an email from the daughter of the victims

indicating that defense counsel attempted to contact her.

              The record does not support Chuparkoff’s claim that defense counsel

failed to pursue discovery or was otherwise deficient in defending the case. Our

conclusion includes Chuparkoff’s argument that defense counsel should have
challenged venue in the case. Further to that issue, Chuparkoff’s reliance on State v.

Yavorcik, 

, 

 (8th Dist.), is inapposite. Yavorcik was

convicted of conspiracy to engage in a pattern of corrupt activity and engaging in a

pattern of corrupt activity. Venue was lacking in that case because the state failed

to establish that Yavorcik was involved in the conspiracy underlying the pattern of

corrupt activity.

               “[C]ounsel is not required to file futile motions” where success is

improbable. State v. Hudson, 8th Dist. Cuyahoga No. 102767, 

, ¶ 9,

citing State v. Martin, 

, 

 (1st Dist. 1983), and

State v. Parra, 8th Dist. Cuyahoga No. 95619, 

. Chuparkoff

has failed to identify how defense counsel’s conduct was “outside the wide range” of

behaviors demonstrating “professionally competent assistance” and how he was

“prejudiced by that conduct.” Strickland, 

, 

, 

. Chuparkoff has not demonstrated that he has suffered a manifest

injustice that would entitle him to relief from judgment in this case. Mathis, 8th

Dist. Cuyahoga No. 100342, 

.

               The second assigned error is without merit.

      B.    Time to Secure New Counsel

                Chuparkoff argues in the first assigned error that the trial court erred

as a matter of law when it refused to allow sufficient time for him to secure new

counsel. This argument also lacks merit.
              Chuparkoff was indicted on February 28, 2017. On March 13, 2017,

Chuparkoff was declared indigent and assigned a public defender. Discovery was

conducted and several continuances granted at Chuparkoff’s request due to ongoing

discovery. At the final pretrial on June 12, 2017, Chuparkoff appeared in court with

counsel and rejected a plea offer. The trial remained scheduled for June 28, 2017.

              Crim.R. 16 supplemental discovery responses were filed over the next

ten days after the pretrial. On June 22, 2017, Chuparkoff moved to continue the trial

date on the ground that the state provided additional discovery consisting of

“hundreds of pages of email correspondence, case documents, and three additional

witnesses with summaries of proposed testimony.” The state’s trial exhibit binder

had also been provided that contained documentation that the defense had not seen

previously. Chuparkoff argued that it was impossible to review and investigate the

new information and that his out-of-county residency made it difficult to meet with

assigned counsel.    Chuparkoff also stated that he and his assigned counsel

maintained full criminal caseload dockets.

               At the pretrial on June 28, 2017, the trial court granted the request

of the defense for a continuance:

      Defendant’s motion for trial continuance is granted. Pretrial set for
      July 10, 2017 at 9:00 a.m. If new counsel is retained by the defendant,
      retained counsel must file a notice of appearance by July 10, 2017, and
      attend the July 10, 2017 pretrial.

(Emphasis added.) Journal entry No. 99479160 (June 28, 2017).

              New defense counsel entered an appearance on July 10, 2017. At the

pretrial held that date, another continuance was granted at Chuparkoff’s request due
to ongoing discovery. A pretrial was scheduled for September 6, 2017, and the trial

was rescheduled for September 18, 2017. The trial court granted an additional

continuance until September 11, 2017 at the September 6, 2017 pretrial but the trial

date remained set.

               “‘When a defendant enters a plea of guilty as part of a plea bargain,

the defendant waives all appealable errors which may have occurred at trial, unless

such errors are shown to have precluded the defendant from entering a knowing and

voluntary plea.’” State v. Lenard, 8th Dist. Cuyahoga No. 94782, 

,

¶ 5, quoting State v. Kelley, 

, 

 (1991). Chuparkoff

does not argue on appeal, and acknowledged at oral argument in this case, that the

trial court complied with Crim.R. 11(C) so that his plea was knowingly, intelligent

and voluntarily made pursuant to the rule.

               The instant claim is barred by the doctrine of res judicata. “Res

judicata bars the assertion of claims against a valid, final judgment of conviction that

have been raised or could have been raised on appeal.” State v. Hughes, 8th Dist.

Cuyahoga No. 97311, 

, citing State v. Ketterer, 

, 

, 

, citing State v. Perry, 

,

 (1967), paragraph nine of the syllabus.

               “‘Ohio courts of appeals have applied res judicata to bar the assertion

of claims in a motion to withdraw a guilty plea that were or could have been raised

at trial or on appeal.’” 

 quoting Ketterer at ¶ 59, citing State v. McGee, 8th Dist.

Cuyahoga No. 91638, 

, ¶ 9. “This court has consistently recognized
that the doctrine of res judicata bars all claims raised in a Crim.R. 32.1 motion that

were raised, or could have been raised, in a prior proceeding, including a direct

appeal.” 

 citing State v. Grady, 8th Dist. Cuyahoga Nos. 96523, 96524, and

96525, 

.

               The first assigned error is overruled.

III.   Conclusion

               The trial court’s judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY AND WITH
THE SEPARATE CONCURRING OPINION;
FRANK D. CELEBREZZE, JR., J., CONCURS IN PART AND CONCURS IN
JUDGMENT ONLY IN PART WITH SEPARATE OPINION


FRANK D. CELEBREZZE, JR., J., CONCURRING IN PART AND CONCURRING
IN JUDGMENT ONLY IN PART:

               I concur with the lead opinion’s resolution of Chuparkoff’s second

assignment of error and determination that he failed to demonstrate a manifest

injustice warranting withdrawal of the guilty plea.
              I respectfully concur in judgment only with the lead opinion’s

resolution of Chuparkoff’s first assignment of error. In my view, the trial court did

not abuse its discretion in granting the defense a 13-day continuance.

              In this appeal, Chuparkoff appears to argue that he was prejudiced by

the 13-day extension and that he should have been given more time to retain new

counsel due to the “voluminous nature of the charges, and the numerous defenses

and witnesses” involved in the case. In support of his argument, Chuparkoff argues

that as a result of the July 4, 2017 holiday, he only had five business days to retain

new counsel and was “forced to choose counsel on short notice.” Chuparkoff

contends that he should have been given more time to meet with and interview

several attorneys. Chuparkoff’s argument is misplaced and unsupported by the

record.

              The decision to grant or deny a motion for a continuance rests in the

sound discretion of the trial court. State v. Unger, 

, 

 (1981). An abuse of discretion occurs where the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 

, 

 (1983).

              In this case, the trial court’s decision granting Chuparkoff a 13-day

extension to retain new counsel was not unreasonable, arbitrary, or unconscionable,

and Chuparkoff has failed to demonstrate how he was prejudiced by the 13-day

extension.
                 The record reflects that Chuparkoff retained new counsel within the

time frame of the 13-day extension. Chuparkoff failed to demonstrate that either the

public defender that was assigned to represent him or the new attorney he retained

on July 10, 2017, were incompetent. Chuparkoff was not entitled to a longer

extension so that he could meet with and interview several attorneys, retain the best

possible attorney, or retain an attorney with whom he had a meaningful

relationship.2

                 Chuparkoff’s argument that he only had five business days to retain

new counsel is also meritless. Chuparkoff had eight business days, notwithstanding

the July 4, 2017 holiday, to retain new counsel: Wednesday June 28, Thursday June

29, Friday June 30, Monday July 3, Wednesday July 5, Thursday July 6, Friday July

7, and Monday July 10. Finally, Chuparkoff’s argument is premised entirely on the

assumption that every law firm is closed and every defense attorney takes the entire

day off for the July 4 holiday. Clearly this is not the case. There were certainly

private defense attorneys that Chuparkoff could have met with and interviewed on

the Fourth of July; he simply failed to do so.

                 For all of these reasons, in my view, there is no basis upon which the

trial court’s granting of a 13-day continuance was unreasonable, arbitrary, or

unconscionable.



      2 Although a criminal defendant has a constitutional right to counsel, the
defendant does not, however, have the right to counsel with whom he or she has a rapport
or with whom he or she can develop a meaningful lawyer-client relationship. State v.
Henness, 

, 

 (1997).